INDIGENOUS AND TRIBAL PEOPLES’ RIGHTS OVER THEIR

ANCESTRAL LANDS AND NATURAL RESOURCES

Norms and Jurisprudence of the Inter-American Human Rights System

VII.     HOW FAILURE TO SECURE PROPERTY RIGHTS IMPAIRS THE ENJOYMENT OF OTHER HUMAN RIGHTS

153.          The lack of granting of title, delimitation, demarcation and possession of ancestral territory, hampering or preventing access to land and natural resources by indigenous and tribal peoples, is directly and causally linked to situations of poverty and extreme poverty among families, communities and peoples.[423]  In turn, the typical circumstances of poverty trigger cross-cutting violations of human rights, including violations of their rights to life,[424] to personal integrity, to a dignified existence, to food, to water, to health, to education and the rights of children.[425]

A.                 The Right to Life

154.          The life of members of indigenous and tribal communities “fundamentally depends” on the subsistence activities – agriculture, hunting, fishing, gathering - that they carry out in their territories[426] including continued utilization of traditional collective systems that “are in many instances essential to the individual and collective well-being, and indeed the survival of, indigenous peoples.”[427]  The failure of the State to guarantee indigenous communities’ right to ancestral territory can imply a failure to comply with the duty to secure the life of their members; such was the case of the Yakye Axa community: “the State, by not ensuring the right of the Community to its ancestral territory, has failed to comply with its duty to guarantee the life of its members, as it has deprived the Community of its traditional means of subsistence, forcing it to survive under appalling conditions and leaving it at the mercy of State assistance.”[428]  The State violates article 4.1 of the American Convention in relation to article 1.1, when it does not adopt “the necessary positive measures within its powers, which could reasonably be expected to prevent or avoid risking the right to life of the members of [an indigenous community]”.[429]

155.          In this regard it must be recalled that the right to life is fundamental in the American Convention on Human Rights, because the realization of the remaining human rights depends on its safeguard: “The right to life is a fundamental human right, [the] full enjoyment [of which] is a prerequisite for the enjoyment of the other human rights”;[430] “if this right is not respected, all other rights do not have sense. Having such nature, no restrictive approach of the same is admissible”.[431]  For the Court, “essentially, this right includes not only the right of every human being not to be arbitrarily deprived of his life, but also the right that conditions that impede or obstruct access to a decent existence should not be generated”.[432]  By virtue of this fundamental right, the State is under the triple obligation of generating dignified living conditions, not producing conditions that hamper persons’ minimum dignity, and adopting positive measures to satisfy the right to a dignified life in situations of vulnerability and risk that gain priority: “One of the obligations that the State must inescapably undertake as guarantor, to protect and ensure the right to life, is that of generating minimum living conditions that are compatible with the dignity of the human person[433] and of not creating conditions that hinder or impede it.  In this regard, the State has the duty to take positive, concrete measures geared toward fulfillment of the right to a decent life, especially in the case of persons who are vulnerable and at risk, whose care becomes a high priority”.[434]  Thus, “by virtue of this fundamental role that the Convention assigns to [the right to life], the States have the duty to guarantee the creation of the conditions that may be necessary in order to prevent violations of such inalienable right.”[435]  For the Court, “regarding the compliance with the obligations imposed by Article 4 of the American Convention, as regards to Article 1(1) thereof, it is not only presumed that no person shall be deprived of his life arbitrarily (negative obligation), but also that, in the light of its obligation to secure the full and free enjoyment of human rights, the States shall adopt all appropriate measures (…) to protect and preserve the right to life (positive obligation)”.[436]  Consequently, States “States must adopt any measures that may be necessary to create an adequate statutory framework to discourage any threat to the right to life; (…)and to protect the right of not being prevented from access to conditions that may guarantee a decent life,[437] which entails the adoption of positive measures to prevent the breach of such right”.[438]

156.          In application of these rules, in cases of indigenous communities in extreme conditions of vulnerability due to lack of access to their ancestral territory, the Court evaluates whether the State caused conditions that prevented their access to a life in dignified conditions, and if that happened, whether it complied with its international obligations to adopt positive, qualified and urgent measures: “In the instant case, the Court must establish whether the State generated conditions that worsened the difficulties of access to a decent life for the members of the Yakye Axa Community and whether, in that context, it took appropriate positive measures to fulfill that obligation, taking into account the especially vulnerable situation in which they were placed, given their different manner of life (different worldview systems than those of Western culture, including their close relationship with the land) and their life aspirations, both individual and collective, in light of the existing international corpus juris regarding the special protection required by the members of the indigenous communities, in view of the provisions set forth in Article 4 of the Convention, in combination with the general duty to respect rights, embodied in Article 1(1) and with the duty of progressive development set forth in Article 26 of that same Convention, and with Articles 10 (Right to Health); 11 (Right to a Healthy Environment); 12 (Right to Food); 13 (Right to Education) and 14 (Right to the Benefits of Culture) of the Additional Protocol to the American Convention, regarding economic, social, and cultural rights, and the pertinent provisions ILO Convention No. 169”.[439]

B.        The Right to Health

157.          The Inter-American Court has recalled that indigenous and tribal peoples have the right to access their territory and the natural resources necessary “to practice traditional medicine to prevent and cure illnesses.”[440]  On this point, the Inter-American Court has quoted General Comment 14 of the UN Committee on Economic, Social and Cultural Rights, on the right to the enjoyment of the highest attainable standard of health.  General Comment 14 specifies that “[i]ndigenous peoples have the right to specific measures to improve their access to health services and care. These health services should be culturally appropriate, taking into account traditional preventive care, healing practices and medicines […]. [I]n indigenous communities, the health of the individual is often linked to the health of the society as a whole and has a collective dimension.  In this regard, the Committee considers that [...] denying them their sources of nutrition and breaking their symbiotic relationship with their lands, has a deleterious effect on their health.”[441] 

158.          More generally, indigenous communities experience conditions of extreme misery due to the lack of access to land and natural resources that are necessary for their subsistence.[442]  In cases in which indigenous and tribal peoples are deprived of nutrition, health and access to clean water because of such lack of access to ancestral territories, States have an obligation to “take immediate steps to ensure their access to the lands and natural resources on which they depend,” in order to prevent an erosion of the right to health and the right to life.[443]

C.        Economic and Social Rights

159.          The lack of access to lands and resources also limits the enjoyment of other economic and social rights.  The UN Committee on Economic, Social and Cultural Rights’ General Comments on the rights to adequate food and water specify that point: “In the case of indigenous peoples, access to their ancestral lands and to the use and enjoyment of the natural resources found on them is closely linked to obtaining food and access to clean water.  In this regard, said Committee on Economic, Social and Cultural Rights has highlighted the special vulnerability of many groups of indigenous peoples whose access to ancestral lands has been threatened and, therefore, their possibility of access to means of obtaining food and clean water.”[444]  For the Inter-American Court, in the case of indigenous peoples, “special detriment to the right to health, and closely tied to this, detriment to the right to food and access to clean water, have a major impact on the right to a decent existence and basic conditions to exercise other human rights, such as the right to education or the right to cultural identity.”[445]

D.        The Right to Cultural Identity and Religious Freedom

160.          The perpetuation of indigenous and tribal peoples’ cultural identity also depends on recognition of ancestral lands and territories.[446] The close relationship between indigenous and tribal peoples and their traditional territories and natural resources is a constitutive element of their culture, understood as a particular way of life.[447]  Ancestral cemeteries, places of religious meaning and importance, and ceremonial or ritual sites linked to the occupation and use of physical territories[448] constitute an intrinsic part of the right to cultural identity.[449] Failure to guarantee the right to communal property thus impairs the preservation of the ways of life, customs and language of indigenous and tribal communities.[450]  For indigenous and tribal peoples, “possession of their traditional territory is indelibly recorded in their historical memory, and their relationship with the land is such that severing that tie entails the certain risk of an irreparable ethnic and cultural loss, with the ensuing loss of diversity.”[451]

161.          Indigenous and tribal peoples are thus entitled to effective guarantee of their right to live in their ancestral territory and preserve their cultural identity.[452]  If the State fails to secure the right to territorial property of indigenous communities and their members, they are deprived “not only of material possession of their territory but also of the basic foundation for the development of their culture, their spiritual life, their wholeness and their economic survival.”[453]  Therefore, by virtue of Article 21 of the American Convention, the protection of the right to territorial property is a means to preserve the fundamental basis for the development of the culture, spiritual life, integrity and economic survival of indigenous communities.[454]  Limitations on the right to indigenous property can also affect the right to the exercise of one’s own religion, spirituality or beliefs, a right recognized by Article 12 of the American Convention and Article III of the American Declaration.  States are under the obligation to secure indigenous peoples’ freedom to preserve their own forms of religiousness or spirituality, including the public expression of this right and access to sacred sites.

162.          The loss of cultural identity because of the lack of access to ancestral territory has a direct impact upon the rights of the children of the dispossessed communities. The Inter-American Court has explained: “Regarding the cultural identity of the boys and girls of indigenous communities, the Court notes that Article 30 of the Convention on the Rights of the Child establishes an additional and complementary obligation which gives content to Article 19 of the American Convention, namely the obligation to promote and protect indigenous children’s right to live in accordance with their own culture, their own religion and their own language. // Likewise, this Court considers that from the States’ general obligation to promote and protect cultural diversity, is derived a special obligation to guarantee indigenous children’s right to cultural life. // In this sense, the Court considers that the loss of traditional practices, such as the feminine or masculine initiation rituals and the Community’s languages, and the damages derived from the lack of territory, affect in a particular way the development and cultural identity of the Community’s boys and girls, who will not even be able to develop that special relationship with their traditional territory and that particular form of life that appertains to their culture, if the measures necessary to guarantee the enjoyment of those rights are not implemented.”[455]

E.         Labor Rights

163.          The IACHR has also proven that the occupation and restriction of indigenous territories, insofar as they prevent indigenous and tribal peoples from access to their traditional subsistence activities, expose their members to situations of work exploitation (marked by bad working conditions, low salaries and lack of social security), and even to practices such as forced labor or servitude for debts, analogous to slavery.[456]

164.          In its 2009 report on “Captive Communities: Situation of the Guaraní Indigenous People and Contemporary Forms of Slavery in the Bolivian Chaco”, the IACHR verified the direct causal link that exists between the territorial dispossession and forced labor of the members of the Guaraní indigenous communities of the Bolivian Chaco.  In such report, the IACHR “finds the existence of debt bondage and forced labor, which are practices that constitute contemporary forms of slavery. Guaraní families and communities clearly are subjected to a labor regime in which they do not have the right to define the conditions of employment, such as the working hours and wages; they work excessive hours for meager pay, in violation of the domestic labor laws; and they live under the threat of violence, which also leads to a situation of fear and absolute dependency on the employer. The Commission highlights the importance of the fact that these are individuals, families, and communities who belong to an indigenous people, who find themselves in those deplorable conditions due to the involuntary loss of their ancestral lands, as a result of actions and policies taken by the State over more than a century, and who at present find it impossible to enjoy their fundamental rights, as an indigenous people, to collective communal property, access to justice, a dignified life, and the development of their own self-government and their own social, cultural, and political institutions.”[457]  Therefore it concluded that “[t]he problem of bondage and forced labor in the Bolivian Chaco has its origins in the dispossession of their territory suffered by the Guaraní indigenous people over more than a century, which resulted in the subjugation of its members to conditions of slavery, bondage, and forced labor. The solution to this problem lies not only in the elimination of contemporary forms of slavery on the estates of the Chaco, but also in measures of reparation including the restitution of the ancestral territory of the Guaraní people and integral measures that solve their needs in health, housing, education, and technical training that would arise after the ‘emancipation’ of the Guaraní captive communities.”[458]

F.         Right to Self-determination

165.          The lack of access to ancestral territory prevents the exercise of indigenous and tribal peoples’ right to self-determination. The U.N. Declaration on the Rights of Indigenous Peoples explicitly recognizes indigenous peoples’ right to self-determination.^[459]  ILO Convention No. 169 also recognizes the aspirations of indigenous peoples to control their own institutions, ways of life and economic development “within the framework of the state in which they live.”[460]  There is a direct relation between self-determination and land and resource rights.

166.          In the case of the Saramaka People v. Suriname the Court referred to the right of self-determination in its interpretation of indigenous land and resource rights under American Convention Article 21. It noted that the Committee on Economic, Social, and Cultural Rights has interpreted common Article 1 of the Covenants as being applicable to indigenous peoples.^[461]  Accordingly, by virtue of the right of indigenous peoples to self-determination recognized under said Article 1, they may “freely pursue their economic, social and cultural development”, and may “freely dispose of their natural wealth and resources” so as not to be “deprived of [their] own means of subsistence.”^[462]  The Court considered that the rules of interpretation contained in Article 29(b) of the American Convention, precluded it “from interpreting the provisions of Article 21 of the American Convention in a manner that restricts its enjoyment and exercise to a lesser degree than what is recognized”^[463] in the UN Covenants.  Accordingly, the Court concluded that Article 21 of the American Convention calls for the right of members of indigenous and tribal communities to freely determine and enjoy their own social, cultural and economic development, which includes the right to enjoy their particular spiritual relationship with the territory they have traditionally used and occupied.  As a corollary, the State has an obligation to adopt special measures to recognize, respect, protect and guarantee the communal property right of the members of indigenous and tribal communities to such territory. 

G.        Right to Psychological and Moral Integrity

167.          The lack of access to ancestral territory also causes suffering to the members of the dispossessed indigenous communities, which constitutes a violation of their right to psychological and moral integrity. In the case of the Xákmok-Kásek community v. Paraguay, the Inter-American Court explained that “several of the alleged victims who declared before the Court expressed the sadness that they, and the members of the Community, feel because of the lack of restitution of their traditional lands, the progressive loss of their culture and the long wait they have had to bear in the course of the inefficient administrative procedure. In addition, the miserable living conditions experienced by the members of the Community, the death of several of its members and the general state of abandonment in which they are generate sufferings that necessarily affect the psychological and moral integrity of all of the members of the Community. All of this constitutes a violation of Article 5.1 of the Convention, to the detriment of the members of the Xákmok-Kásek Community.”[464]

H.        Corresponding State Obligations

168.          In relation to indigenous communities who have been dispossessed of their territories and are consequently placed in vulnerable and extreme situations, the State must:

1.       adopt urgent measures to guarantee effective access by the communities to the territories that belong to them;

2.       strive to guarantee the members of these communities dignified living conditions, through the immediate provision of the goods and services they require in the fields of food, water, dignified housing, health and education;

3.       adopt precautionary measures to protect their ancestral territories from any act that can entail a loss of their value while their restitution is carried out; and

4.       promote access to justice by the community members, as victims of serious human rights violations.[465]

Restitution of ancestral territory

169.          The precarious socioeconomic conditions of these indigenous communities make compliance with the State duty to solve their territorial claims more urgent.[466]  The main means available to the State to improve the situation of indigenous communities in extreme socioeconomic distress is the restitution of their traditional lands; thus, in the case of the Sawhoyamaxa community, the Inter-American Court ruled that “although the State did not take them to the side of the road, it is also true it did not adopt the adequate measures, through a quick and efficient administrative proceeding, to take them away and relocate them within their ancestral lands, where they could have used and enjoyed their natural resources, which resources are directly related to their survival capacity and the preservation of their ways of life.”[467]  In this case, therefore, the State had “not adopted the necessary measures for the members of the Community to leave the roadside, and thus, abandon the inadequate conditions that endangered, and continue endangering, their right to life.”[468]

Immediate provision of the basic goods and services required for a dignified subsistence

170.          Indigenous communities who lack access to ancestral territory often live a situation of extreme vulnerability because of the lack of access to subsistence resources.  In such circumstances they have a right to immediate and priority provision by the State of food, water, health care and educational attention which are adequate, regular and sufficient[469] in terms of the periodicity, quantity and quality, to reverse and solve the situation of risk and vulnerability in the areas of food, water, health, sanitation and housing, taking into account the seriousness of each case.[470]  The State must adopt the positive measures that are necessary to ensure that the members of such indigenous communities, during the period in which they remain without territory, can live in conditions which are compatible with their dignity.[471]  The State must also adopt measures which can enable the members of those indigenous communities to live in a healthy environment, to prevent or avoid illnesses, especially among their children.[472]

171.          The essential content of the State duties towards communities deprived of access to their ancestral land is summarized in the reparations ordered by the Court in the Yakye Axa and Sawhoyamaxa cases: in addition to delimiting, demarcating, granting legal title and materially handing them their ancestral territories or alternative lands that satisfy the jurisprudential criteria,[473] “as long as the Community remains landless, given its special state of vulnerability and the impossibility of resorting to its traditional subsistence mechanisms, the State must supply, immediately and on a regular basis, sufficient drinking water for consumption and personal hygiene of the members of the Community; it must provide regular medical care and appropriate medicine to protect the health of all persons, especially children, the elderly and pregnant women, including medicine and adequate treatment for worming of all members of the Community; it must supply food in quantities, variety and quality that are sufficient for the members of the Community to have the minimum conditions for a decent life; it must provide latrines or any other type of appropriate toilets for effective and healthy management of the biological waste of the Community; and it must supply sufficient bilingual material for appropriate education of the students at the school in the current settlement of the Community”.[474]

172.          The measures that the State must adopt to attend these communities must be prioritized and special, with the aim of achieving an effective provision and supply of such goods and services; these measures differ, because of their urgent character, from those that the state must adopt to guarantee the rights of the population and of indigenous communities in general.[475]

173.          The state obligations of priority attention become yet more pressing when it comes to the children or the pregnant women of these communities: “As regards to the right to life of children, the State has, in addition to the duties regarding any person, the additional obligation to promote the protective measures referred to in Article 19 of the American Convention (…). Thus, on the one hand, the State must undertake more carefully and responsibly its special position as guarantor, and must adopt special measures based on the best interest of the child.[476]  The aforesaid cannot be separated from the likewise vulnerable situation of the pregnant women of the Community. States must devote special attention and care to protect this group and must adopt special measures to secure women, specially during pregnancy, delivery and lactation, access to adequate medical care services”.[477] The extreme vulnerability of the children of indigenous communities due to lack of territory is particularly serious;[478] in particular, the state has the duty, inter alia, of providing these children with their basic needs, “to ensure that the situation of vulnerability of their Community due to lack of territory will not limit their development or destroy their life aspirations.[479]”[480]

174.          If the State fails to act to prevent the deaths of children who are members of communities at risk due to lack of access to territory, it can become internationally responsible for violation of articles 4 and 19 of the American Convention,[481] when “said deaths are attributable to the lack of adequate prevention and to the failure by the State to adopt sufficient positive measures, considering that the State had knowledge of the situation of the Community and that action by the State could be reasonably expected.”[482]  It must be determined that at the moment the events occurred, “the authorities knew or should have known about the existence of a situation posing an immediate and certain risk to the life of an individual or of a group of individuals, and that the necessary measures were not adopted within the scope of their authority which could be reasonably expected to prevent or avoid such risk.”[483]

175.          The situation of the elderly members of indigenous communities that lack access to their territory is comparably serious: “As regards the special consideration required by the elderly, it is important for the State to take measures to ensure their continuing functionality and autonomy, guaranteeing their right to adequate food, access to clean water and health care. Specifically, the State must provide care for the elderly with chronic diseases and in terminal stages, to help them avoid unnecessary suffering.”[484] It is necessary to take into account that in many indigenous communities oral transmission of the culture to the younger generations is primarily entrusted to the elderly.

176.          In addition, State obligations under articles 4, 5, 21 and 24 of the American Convention and the duties of protection and guarantee that stem from articles 1 and 2 of the Convention, require the State to provide, in an exceptional manner, the basic goods and services necessary for indigenous communities’ subsistence, in a range of situations in which, due to reasons of force majeure, indigenous peoples are deprived of access to their lands and resources, such as food crises, relocation caused by development projects, internal displacement caused by environmental crises and cases of armed conflict, and other humanitarian emergency situations, which trigger the aforementioned State duties of special attention.[485]

177.          The fact that the State is not responsible for depriving the members of the communities of their lands, does not relieve the State from its duties from the moment it has knowledge of the situation.[486]

Interim protection of the ancestral territory pending restitution

178.          As for the interim protection of the ancestral territories pending their restitution to the dispossessed communities, the Court has explained that until it is effectively returned, “the State must guarantee that such territory will not be damaged by acts of the State itself or of private third parties.  Thus, it must ensure that the area will not be deforestated, that sites which are culturally important for the community will not be destroyed, that the lands will not be transferred and that the territory will not be exploited in such a manner as to cause irreparable harm to the area or to the natural resources present therein.”[487]